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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Criminal No. 97-0166 (RCL)

UNITED STATES OF AMERICA

v.

RONALD HENDERSON BLACKLEY,Defendant

UNITED STATES OPPOSITION AND
INCORPORATED MEMORANDUM

TO DEFENDANT'S MOTION TO DISMISS OR, IN
THE ALTERNATIVE, TO

HOLD AN EVIDENTIARY HEARING BASED ON
SELECTIVE PROSECUTION

The United States, by and through the Office of Independent Counsel, respectfully
requests that defendants motion to dismiss, or in the alternative, for an
evidentiary hearing, be denied and that the United States' motion in limine filed
October 24, 1997, be granted.Defendant's
baseless claims of government misconduct and his repetitious attempts to distract the
focus of this proceeding from his own criminal actions should not be contenanced by this
Court.

Contrary to defendant's unsupported allegations, the Office of Independent Counsel
("OIC") did not engage in selective prosecution.The defendant was not singled out for prosecution from a group of similarly
situated individuals; nor did the government possess an improper motive in bringing this
prosecution.Defendant has failed to present any
substantiation for his empty, inflammatory accusations.Such claims of selective prosecution, completely devoid of support, do not satisfy
a defendant's burden to justify discovery, much less the evidentiary hearing or dismissal
defendant seeks.This Court should dismiss
defendant's motion as unsubstantiated and frivolous.

Finally, defendant argues both that (1) the OIC's conduct and "motive" in
bringing this prosecution concern issues of law to be resolved by this Court and (2) he
should be able to argue this issue before the jury.Defendant's
contradictory positions cannot be sustained.As
recognized in defendant's own motion, the propriety of the OIC's conduct and any questions
regarding the OIC's "motive" for investigating and prosecuting defendant are
issues of law.Evidence related to these
issues is irrelevant to the ultimate issue to be submitted to the jury -- the defendant's
innocence or guilt -- and will serve only to confuse and mislead the trier-of-fact.This Court should preclude defendant from raising
his nullification claim before the jury.

I.

INTRODUCTIONOn
September 9, 1994, the Special Division of the D.C. Circuit Court of Appeals appointed
Donald C. Smaltz Independent Counsel ("IC") and granted him jurisdiction to
investigate whether former Secretary of Agriculture Alphonso Michael ("Mike")
Espy violated any federal law by accepting gifts from organizations and individuals with
business pending before the USDA.See
Order Appointing Independent Counsel, filed September 9, 1994, attached as Exhibit A.That order further granted the IC
"jurisdiction and authority to investigate other allegations or evidence of violation
of any federal criminal law . . . by any organization or individual developed during the
Independent Counsel's investigation referred to above and connected with or arising out of
that investigation."Id.Subsequently, in April of 1996, the Special
Division augmented this order granting the IC:

the jurisdiction and authority to
investigate and prosecute any violation of any federal law . . . related to any
application, appeal, or request for subsidy made to or considered by the United States
Department of Agriculture, for which Secretary of Agriculture Alphonso Michael (Mike) Espy
and/or his Chief of Staff Ronald Blackley intervened in the application, approval, or
review process.

See Exhibit B hereto.

Pursuant to this mandate, the OIC instigated a thorough review of the activities of
Mike Espy, defendant Blackley, and others.This
investigation led the OIC to evidence that defendant Blackley had on three occasions lied
about his receipt of money from persons obtaining subsidies from the Department.Having heard this evidence, the Grand Jury
returned the indictment at issue charging defendant with violating 18 U.S.C. § 1001 on
three occasions.

In the past 30 days, defendant has devoted considerable energy to alleging
impropriety on the part of the government.This
Court has now heard repeated claims of government misconduct and allegations of discovery
violations in numerous motions -- as if the passionate repetition of such claims will
prove them true.

As the theme of the defense became clear, the United States filed a motion in
limine with this Court requesting that it preclude defendant from raising before the
jury, in argument or in evidence, questions about the OIC's conduct or attacks on the
OIC's"motive" in bringing the
present prosecution.See United
States' Mot. in Limine and Incorp. Mem., filed October 24, 1997.Such evidence would of course be irrelevant to the
question of whether defendant knowingly made the three false statements for which he has
been charged.The United States pointed out
in its motion that such issues are irrelevant to the actual innocence or guilt of a
defendant, but instead are at best a claim of selective prosecution and a question of law
to be decided by the court.

Apparently spurred by the United States' motion in limine, defendant has now
brought his most direct and grandiose accusation against the government to date, alleging
that the OIC engaged in selective prosecution by indicting him. Defendant's argument
appears to be that he was singled out for prosecution by the OIC because he refused to
provide information helpful to a prosecution of Mike Espy.This claim fails to give rise to a claim of selective prosecution and is patently
frivolous.[1]

II.

ARGUMENT

To succeed on a claim of selective prosecution, a defendant faces a
"demanding" burden.United
States v. Armstrong, 116 S.Ct. 1480, 1486 (1996).As aptly explained by the Supreme Court in Wayte v. United States, 470 U.S.
598, 105 S.Ct. 1524 (1985):

In our criminal justice system, the Government retains broad discretion as to whom
to prosecute. So long as the prosecutor has probable cause to believe that the accused
committed an offense defined by statute, the decision whether or not to prosecute, and
what charge to file or bring before a grand jury, generally rests entirely in his
discretion.This broad discretion rests
largely on the recognition that the decision to prosecute is particularly ill-suited to
judicial review.Such factors as the strength
of the case, the prosecution's general deterrence value, the Government's enforcement
priorities, and the case's relationship to the Government's overall enforcement plan are
not readily susceptible to the kind of analysis the courts are competent to undertake.Judicial supervision in this area, moreover,
entails systemic costs of particular concern.Examining
the basis of a prosecution delays the criminal proceeding, threatens to chill law
enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry,
and may undermine prosecutorial effectiveness by revealing the Government's enforcement
policy.

This
presumption that the prosecutor has acted properly may be overcome in a selective
prosecution claim only upon a showing by the defendant that (1) the prosecutor's actions
in bringing a case have a discriminatory effect and (2) that those actions were motivated
by a discriminatory purpose.Wayte v.
United States, 470 U.S. at 608, 105 S.Ct. at 1531.To prove discriminatory effect, a defendant must show that similarly
situated individuals were not prosecuted.Id.To prove discriminatory purpose, a defendant must
show that the government prosecuted him because of his exertion of a protected
right.Id.

Though
not specifically addressed in this circuit, almost every circuit court addressing the
issue has held that a defendant must establish a prima facie case to receive an
evidentiary hearing on a selective prosecution claim.[2]

Here,
defendant has utterly failed to make the requisite showing for dismissal or for an
evidentiary hearing.He has failed to present
any evidence that similarly situated individuals are not prosecuted or that the government
has prosecuted him because of his exertion of a protected right.Defendant's unsupported accusations and
"beliefs" are woefully insufficient to carry his burden.

A.Defendant Has
Failed To Show A Discriminatory Effect.

Defendant
first argues that he is part of some vaguely defined group of persons who have omitted
information on their financial disclosure forms and who, generally speaking, are not
prosecuted, and that he has been singled out for prosecution by the OIC for improper
reasons.Def.'s Mem. Supp. of Mot. to Dismiss
(Def.'s Mem.) at 4-7.Defendant's
argument fails on multiple grounds.

First,
defendant's vague definition of the group of which he is purportedly a member is
frivolous.Relying on unidentified hearsay (we
have been told that there is only one case identified in which criminal charges were filed
for a failure to report required information on a financial disclosure form, Def.'s
Motion at 5), defendant appears to suggest that government officials who lie on financial
forms are entitled to some constitutionally protected stature.

Even
if this court chooses to give credence to defendant's definition of the group in which he
claims membership, defendant is flatly wrong when he claims he has been singled out from
that group.Contrary to defendant's
representations, a cursory search reveals numerous reported prosecutions of other
government officials -- with no connection to Mike Espy or this investigation -- for
filing false financial disclosure reports.[3]

Defendant's
analysis fails even more noticeably when one notes that his entire selective prosecution
claim focuses on but one of the three counts on which he has been indicted - the false
financial disclosure form - Count 1.Of
course, defendant faces two additional counts under § 1001 which are completely unrelated
to this form but which defendant chooses to ignore.In
reality, this is a multiple false statement case, not a false financial disclosure form
case.Defendant can hardly argue in good
faith that he is being selectively prosecuted under 18 U.S.C. § 1001 by ignoring
two-thirds of the indictment filed against him.

To
show a true discrimination effect, defendant would have to show that from the group of
public officials whom the government knows violated 18 U.S.C. § 1001, only he has been
prosecuted while the others were not.See
generally Wayte.Obviously, defendant has
not and cannot meet this burden as federal prosecutors routinely prosecute false statement
offenses regardless of any connection to Mike Espy.See,
e.g.,False Statements, 34 Am. Crim. L. Rev. 567, 567 (1997) ("Section 1001
of Title 18 of the United States Code is a frequently used and far-reaching statute which
criminalizes false statements made directly or indirectly to the federal
government.").Moreover, since the OIC
was established on September 9, 1994, the following individuals have been prosecuted by
this office for violating 18 U.S.C. § 1001: Richard Douglas, Jack Williams, Alvarez
Ferrouillet, Jr., John Hemmingson, and Gary Black.Thus,
defendant's claim is contrary to the availableevidence
and he must resort to bald assertions and conclusions all of which still miss the mark.

In
sum, defendant has presented no evidence that either he or other public officials who have
violated § 1001, and refused to provide evidence against Mike Espy, have received
disparate treatment. Thus, the first part of defendant's selective prosecution argument
fails.

B.Defendant
has Failed to Establish Discriminatory Purpose.

Defendant
next asserts that his prosecution was improperly motivated by his refusal to cooperate in
the OIC's investigation and to provide incriminating evidence against Mike Espy.Def.'s Mem. at 7-8.

To
show discriminatory purpose, defendant must show that the OIC brought this prosecution because
of defendant's exertion of a privileged right.See
Wayte, 470 U.S. at 610, 105 S.Ct. at 1532; see also, United States v. Smith,
953 F.2d 1060, 1063 (7th Cir. 1992) ("Unless the prosecutor acts on forbidden grounds
such as race or speech, the court must respect the executive's selection from the menu of
crimes with which the defendant could have been charged.").Defendant presents not a shred of evidence to show
the exertion of a privileged right, but rather requests that this Court draw
the inference of an improper motive based upon the circumstances surrounding his
indictment.

Because
he has not a scintilla of evidence that he is being prosecuted on any truly suspect
grounds (e.g., race, religion or some other arbitrary classification), defendant advances
the creative but ultimately fallacious argument that his prosecution resulted from his
refusal to assist the OIC in its efforts to prosecute Mike Espy.However, he submits no real evidence to support
this wild allegation.The OIC did not decide
to prosecute defendant because of his refusal to assist the OIC.Rather, the OIC possessed evidence that defendant
committed three crimes and sought an indictment so charging defendant.

In
his attempt to support his position that the government possessed an improper motive,
defendant provides two letters and an affidavit.The
first letter, prepared by former Associate Independent Counsel Blanche L. Bruce, states
that defendant was not a subject of the OIC's investigation two and a half years ago
on March 14, 1995.This was a true and
correct statement in March of 1995, at the beginning of the OIC's investigation.During the course of its investigation, the OIC
uncovered evidence that defendant violated criminal statutes and thus, requested a Grand
Jury indictment.This hardly is improper.

Defendant
also cites a letter dated September 10, 1997, written by defendant's prior counsel Hiram
Eastland.This letter can be disregarded
since it is not a sworn declaration and was likely written as a form of retaliation for
government's counsel's proper efforts to disqualify Mr. Eastland based on a real conflict
of interest (which order had been granted only weeks prior).

Lastly,
the affidavit of another of defendant's former counsel, Jeffrey Jacobovitz, is not only
inaccurate, it is wholly irrelevant to an accusation of selective prosecution.The Jacobovitz affidavit was filed in opposition
to the Motion to Disqualify Counsel which was granted by this

Court of August 21, 1997.The affidavit reveals nothing supporting a claim
that the OIC prosecuted defendant because of his exertion of a privileged right.

Defendant has simply failed to present
any evidence of improper motive on the part of the OIC but rather relies on bare
accusations.The case law demands more; thus,
defendant's motion should be dismissed.[4]

III.

CONCLUSION

Defendant
has failed to carry his demanding burden of making out a prima facie case let alone
proving that other individuals similarly situated have not been prosecuted and that the
OIC instigated his prosecution because of his refusal to cooperate in the OIC's
investigation.Nor can he carry this burden
inasmuch as (1) the government does indict public officials for lying to government
departments and their investigators and (2) the OIC indicted defendant because of his
illegal conduct.Defendant's motion for
dismissal or for an evidentiary hearing should be denied.

Moreover, as this argument is one of law
now being decided by this Court, defendant should be precluded from raising this and
related issues before the jury.The United
States' motion in limine should be granted.

Date:November 10,
1997Respectfully
submitted,

OFFICE
OF INDEPENDENT COUNSEL

In
Re Alphonso Michael (Mike) Espy

__________________________________

William
F. Fahey

Counsellor
to the Independent Counsel

Joseph
P. Guichet

Associate
Independent Counsel

103
Oronoco Street, Suite 200

P.O.
Box 26356

Alexandria,
Virginia22314

Tel:(703) 706-0010

Fax:(703) 706-0050

[1]Moreover, defendant's motion is not timely, inasmuch as
all substantive motions were due on or before May 19, 1997 and defendant has neither
sought nor received permission to file this motion out of time.

[2]See United States v. Cooks, 52 F.3d 101, 105 (5th
Cir. 1995) (African-American defendant not entitled to hearing where failed to establish
prima facie case of selective prosecution because he could not show similarly situated
white defendants not prosecuted); United States v. Bustamente, 805 F.2d 201, 202
(6th Cir. 1986) (defendant not entitled to evidentiary hearing where he could not make
prima facie case against propriety of prosecutor's purpose); United States v. Mansoor,
77 F.3d 1031, 1034 (7th Cir. 1996) (defendant not entitle to evidentiary hearing where he
could not establish prima facie case because he could not show similarly situated
defendants not prosecuted); United States v. Welliver, 976 F.2d 1148, 1155 (8th
Cir. 1992) (evidentiary hearing properly denied where defendant could not make prima facie
showing that prosecution motivated by his exercise of free speech); United States v.
Bourgeois, 964 F.2d 935, 938 (9th Cir. 1992) (dictum) (defendant must make prima facie
case of selective prosecution to obtain evidentiary hearing); United States v. Jennings,
991 F.2d 725, 730 (11th Cir. 1993); but see United States v. Bassford, 812 F.2d 16,
19-20 (1st Cir. 1987) (to obtain an evidentiary hearing defendant must allege "some
facts (a) tending to show that he has been selectively prosecuted and (b) raising a
reasonable doubt about the propriety of the prosecution's purpose.").

[3]See United States v. Oakar, 111 F.3d 146, 149
(D.C. Cir. 1997) (Congresswoman prosecuted under § 1001 for filing false financial
disclosure form where such form failed to disclose $50,000 in personal liabilities); United
States v. White, 887 F.2d 267 (D.C. Cir. 1989) (branch chief of Office of
Transportation Audits of U.S. General Services Administration prosecuted under § 1001 for
failing to disclose financial and employment connection to corporation on financial
disclosure form); United States v. Hansen, 772 F.2d 940 (D.C. Cir. 1985)
(Congressman prosecuted on four counts under §1001 for failing to disclose various
incomes for four consecutive years on financial disclosure forms); United States v.
Claiborne, 727 F.2d 842, 843 n.1 (9th Cir. 1984) (noting that federal judge being
prosecuted under §1001 for failure to disclose $75,000 loan on financial disclosure
form); United States v. Biaggi, et al., 823 F.Supp. 1151, 1153 (S.D.N.Y.
1993) (former Congressman prosecuted under § 1001 for failure to disclose interest in
company on financial disclosure form); United States v. Mavroules, 819 F.Supp.
1109, 1111 & 1119 (D. Mass. 1993) (Congressman prosecuted under § 1001 for failing to
disclose his receipt of free use of automobiles on financial disclosure form).

[4]Similarly, defendant has failed to meet the rigorous
standard for discovery in aid of his selective prosecution claim.Armstrong, 116 S.Ct. at 1488.This standard is required to prevent a diversion
of prosecutors' resources and [a disclosure of] the government's prosecutorial
strategy.Id.